Green Card Stories is a gem of a book, and I feel inspired to write about it. Written by award winning journalist, Saundra Amrhein, with stunning photographs by award winning photographer, Ariana Lindquist, the book puts a human face on immigration through the journeys of 50 individuals who got their green cards. My good friends, Laura Danielson and Steve Yale-Loehr, produced the book with a lot of dedication and tenacity. Hopefully, their hard work will reap rewards resulting in more rational and humane immigration laws.

Most Americans, whatever their view on immigration may be, tend to see immigrants whom they may know with a different lens, especially if they are co-workers, friends, neighbors or parents in the same school community. Even if immigrants may be demonized in the current political climate, especially those who are undocumented, when one gets to actually know this person, you may probably not view him or her with the same bias. This is what Green Card Stories tries to do. One gets to like the immigrants portrayed in the book even if you do not know them in person. In fact, they all magically come alive when you read their stories and the photographs also reveal facets that no amount of words will ever tell.

Take the example of Francis Price, who is photographed as a successful person meditating on his journey in his well appointed home adorned with tasteful art. He came to the US from Jamaica with $25 to become a businessman in the United States who also served as a trustee of the University of Rochester, his alma mater. Somewhere along the way after he received his green card and built businesses employing hundreds of people, he was put into deportation when applying for citizenship because of the mistake of his lawyer in Jamaica who had not finalized his divorce to his former wife. It was thus discovered after several years that he wrongfully entered as the single son of a sponsoring parent when he was actually married. Fortunately, while in deportation, his current US citizen wife again sponsored him for a green card, while he applied for a waiver to forgive the past violation, and the Immigration Judge again granted him the green card.

Or Gulnahar Alam, whom I represented pro bono, who escaped a horrific domestic violence situation in Bangladesh, only to find herself working grueling domestic jobs for families in the New York area. She applied for political asylum and won, being one of the first to assert that domestic violence constituted a form of persecution. Today, she is a well known advocate on behalf of immigrant domestic workers, won several awards, and works for a diabetes education project among minorities at New York University.

There is also the amazing story of Mikel Murga from Spain, who now teaches at MIT, and who got his green card three times. He abandoned his first green card after returning to his country, but gave up the second green card, so that his minor son could accompany him as a derivative under the third green card. While most immigrants are lucky to be able to get green cards just once, Murga is quoted while looking quite the professor in his portrait, “That’s what makes America unique – not how rich it is, they say there are many opportunities, but the most important opportunity is the opportunity to reinvent yourself.” There are 47 other equally inspiring and poignant stories, including one on Jerry Yang who went on to found Yahoo. Read them.

Putting a human face to immigration is the best way to convince others about who they are and the benefits they bring to this country through their struggles, inspiration, ambition and successes. It is also an effective way to counter the lies about immigrants espoused by a loud and vocal minority. The canard against immigrants is an old one. This is what the first Select Committee of the House of Representatives to study immigration concluded in the 1850s:

that the number of emigrants from foreign countries into the United States is increasing with such rapidity as to jeopardize the peace and tranquility of our citizens, if not the permanency of the civil, religious, and political institutions of the United States… Many of them are the outcasts of foreign countries; paupers, vagrants, and malefactors….sent hither at the expense of foreign governments, to relieve them from the burden of their maintenance.

One would have thought that this kind of sentiment would have ended by the second decade of the 21st century, but don’t we hear the same things about immigrants today? Today, it is fashionable in some quarters even by Presidential candidates, members of Congress and state officials to espouse attrition by enforcement, which is a policy to make life so harsh, brutish and unbearable for undocumented immigrants that they will “self deport” themselves. Acknowledging that it would be very costly, if not impossible, to deport the millions of undocumented immigrants, a May 2005 report of Center of Immigration Studies, an anti-immigration organization, writes this in support of attrition:

But there is a third way that rejects this false choice, and it is the only approach that can actually work: Shrink the illegal population through consistent, across-the-board enforcement of the immigration law. By deterring the settlement of new illegals, by increasing deportations to the extent possible, and, most importantly, by increasing the number of illegals already here who give up and deport themselves, the United States can bring about an annual decrease in the illegal-alien population, rather than allowing it to continually increase. The point, in other words, is not merely to curtail illegal immigration, but rather to bring about a steady reduction in the total number of illegal immigrants who are living in the United States. The result would be a shrinking of the illegal population to a manageable nuisance, rather than today's looming crisis.

This is analogous to the approach a corporation might take to downsizing a bloated workforce: a hiring freeze, some layoffs, plus new incentives to encourage excess workers to leave on their own.

This attrition by enforcement policy has spawned draconian anti-immigration laws such as Arizona’s SB 1070 and Alabama’s HB 56, which aim to banish undocumented immigrants from the state even though they may be pursuing legal status under federal law or legitimately defending themselves in federal removal proceedings. Their goal is to make it a crime if it is suspected that a person is in the state unlawfully (even though under federal law some may remain in the US), for not carrying documentation, and for harboring and transporting unauthorized immigrants. HB 56 goes further by requiring children to provide proof of immigration status prior to enrollment in public schools, and restricting unauthorized immigrants from engaging in contracts and business transactions. Many of these nasty provisions have been temporarily blocked for now, but they can gain a new lease of the life if the US Supreme Court upholds the constitutionality of such laws later this year.

Tellingly, many of the people profiled in Green Card Stories could have been snared under these draconian state laws or stricter federal laws prior to getting their green cards. Their stories also show how terribly complex our immigration laws can be, and how easily someone can fall through the cracks. Even while there may be anti-immigrant sentiment, what is most touching in many of the stories is how they were helped by the kindness of strangers in America, which has left a lasting impression on them. The more stories we tell about immigrants desiring to do well in America for themselves and their children, the less scope will there be for politicians and hate groups to dehumanize them in the abstract. After all, immigrants are people, like everyone else, with the same dreams, aspirations, vulnerabilities and frailties. The policies of attrition and self-deportation view undocumented immigrants as vermin that can be quietly driven away notwithstanding the fact that they have loved ones here and have set down strong roots. However, this is less likely to happen if Americans get to know them more from their stories. It is only then that more Americans will come to realize that the better solution is to reform our broken immigration system that would be able to tap into the industry and aspirations of immigrants of all stripes, such as the ones in Green Card Stories, rather than to deport them - and everyone will be better off.

There are some wonderful electronic I-9 programs out there, and like any other product on the market, some that are not so good. So, Buyer Beware! There have been articles and postings on issues of compliance and what to look for when purchasing an electronic I-9 program. However, the focus of this posting is slightly different and addresses issues that we have been encountering with increased frequency in our practice. It is what we would call a “compliance loophole” and it has to do with whether a system can be compliant if all of its components may not be. The USCIS Handbook for Employers (M-274) lists some of the factors that USCIS (and ICE) are focused on to determine compliance and those will not be discussed here. As a reminder, neither USCIS, ICE or any other government agency involved in worksite enforcement has or will give a “seal of approval” to a specific electronic I- 9 program. Therefore, we can’t stress enough that it is the employer’s responsibility to make sure that any program that they purchase and use is compliant.

The Initial Review of an Electronic I-9 Program

An employer looking for an electronic I-9 program will typically engage in a formal “Request for Proposal” process or simply gather recommendations from colleagues and research publicly available sources (Internet search, trade show literature, etc.). Either way, the employer will likely have a laundry list of “requirements,” not least of which is whether the system will help them achieve total compliance with the I-9 rules in the M-274 Handbook. To make this assessment, they will ask the vendor some fundamental questions, see a few demos, and occasionally talk with counsel.

So let’s assume that the system has been reviewed and the employer determines that the overall program is compliant with the M-274 guidelines. Is that enough? The answer, in our opinion, is NO. While the assumption might be that a system either is or is not compliant, there is another level which is often overlooked – and that is, are any/all options within the program compliant? This issue is where we believe that employers (and even certain electronic I-9 program vendors) may be at risk.

The assumption, that all available options within a program are also compliant, is a dangerous one to make and in our experience, where some programs fall short. When an employer sees a demo of an I-9 system and reads all of the literature, they naturally assume that all options made available to them within the system would be in compliance and if specific ones are not, the vendor will advise appropriately. Many vendors, on the other hand, often take the position that it is the employer making the ultimate decision on which options to choose and they should seek legal counsel in doing so to make sure the options are in compliance. Some vendors will advise that in general, the employer should seek legal advice but not usually on an option-by-option basis. In addition, many employers do not have current legal counsel and it may seem like overkill to hire someone for this issue.

In reality, most employers simply won’t seek legal advice, and that will be to their detriment, in the case of an ICE audit. (In defense of the electronic I-9 vendors, we understand that they have many different clients to answer to and that the clients may be requesting or even demanding that options be made available for perceived efficiency, regardless of compliance. However, it is the opinion of the authors that those vendors should require the employers to affirmatively acknowledge that the options that they are requesting may not be in compliance based on current agency (including USCIS/ICE) guidance.)

Compliant or Non-Compliant?

At this point, you may be thinking – what are they talking about? We haven’t seen this with any programs that we’ve reviewed. The unfortunate fact is that employers don’t always dive deeply enough into all of the available options nor do they get attorneys involved in reviewing a system in detail. Attorneys themselves also may not be familiar enough with the electronic programs to know the available options and advise accordingly.

The following are some examples we’ve seen where options may change a program from compliant to non-compliant:

1. Address in Section 1 of Form I-9

Section 1 of Form I-9 requests the employee’s “Street Address.” This appears to be asking where the person lives, as compared to a mailing address for example. However, some employers have allowed employees to use a P.O. Box in this section. In June of 2011, USCIS issued FAQs regarding Form I-9 completion and one of the questions asked was whether a P.O. Box could be used in Section 1 of Form I-9. USCIS stated that only a street address could be used in that section. (See FAQ listed on the I-9 Central portion of USCIS.gov)

Simple enough – right? Well, did you know that in spite of this guidance there are electronic I-9 programs on the market that allow the employer the option to use either a P.O. Box or a street address in Section 1 of the electronic form? The reasoning is that some employers, perhaps advised by their own counsel or driven by consensus, still want to have the option to accept a P.O. Box. In some instances, letting the employer know that this option is not compliant will get them to retreat from their position but for others, maybe not. It is the opinion of the authors that only options which are in compliance with current USCIS guidance should be given as options in the I-9 programs. We can understand that there are some issues of I-9 completion that are not black and white and where even ICE and USCIS disagree. In those, we would agree with providing options in the program with the caveat that the employer should discuss with legal counsel. However, for those issues where clear guidance has been provided, the focus should be on compliance and not preference and convenience.

2. Pre-population of employee information

Some electronic I-9 programs have the ability to connect to other existing programs that an employer may have, such as an HRIS database. Certain data fields are then sent from the HRIS system to the electronic I-9 program, and the I-9 is subsequently pre-populated with the new hire’s information, such as name, date of birth, address and social security number. The employee can then review and correct Section 1 as needed and then sign and date the form. This may be seen as a convenience for the employer and the employee – but is it compliant?

According to the Form I-9 (and the M-274) only the employee may complete Section 1 of the form. If anyone provides assistance to the employee with completion of the section, the preparer/translator section of the Form should be completed as well. Therefore, if Section 1 is completed due to the employer’s pre-population, this is not in compliance unless the preparer/translator section of the form is also completed. This issue was recently confirmed by Harold Beasley, Jr., Worksite Enforcement Supervisor, ICE at the AILA Annual Conference in San Diego.

Some programs allow the employer to turn this function off or on, others do not. Most do not automatically complete the preparer/ translator section when the feature is on, and there is also the complicated issue of “who” would be listed as the preparer/translator in that instance. Would it be the person signing section 2 or can a computer program itself be listed? Again, is it the employer’s responsibility or the vendor’s responsibility to address these issues?

3. Changes to the list of acceptable documentsAccording to the M-274, you may use an electronic I-9 form as long as “no change is made to the name, content, or sequence of the data elements and instructions and no additional data elements or language are inserted.” (see page 24 of the 6/1/11 version of the M-274). In many of the programs, options have been added to make the process more efficient. In addition, these options seek to simplify the process so that common errors can be avoided.

One example is having only certain documents, and not others, appear on the drop down menu for Section 2. The available options are based on which box is checked in Section 1, regarding a person’s status. For example, if the person checks the box that they are a US citizen, the option for a permanent resident card will not appear. If a person checks that they are a permanent resident, a US passport card or passport will not appear. Some programs do this automatically, while others have this as a feature to be turned on or off.

Since an employer is required to provide the individual with the list of acceptable documents when completing the I-9 form, is this “assistance” in compliance? Does the filtered drop down menu noted above amount to an employer requesting or advising as to which documents can and cannot be provided? There are differences of opinion on this and at a minimum, it is important that the full list of documents be available to the employee somewhere, either in paper or electronically elsewhere in the program. In addition, this question was specifically asked to the Dept. of Justice Office of Special Counsel (OSC) by an electronic I-9 software vendor in May of 2011. OSC stated that they could not provide specific information on a particular program. However, they were concerned that under certain circumstances this type of option in a program could lead to an OSC claim. (See letter available on the OSC web site here.) In light of this OSC opinion, it is important to make sure that an option regarding this feature be reviewed carefully with an attorney.